Digest:A part-time judge who has adopted reasonable procedures to avoid
presiding over matters in which current and recent former clients of
his/her law firm appear, and then learns that he/she has nonetheless
inadvertently presided over a matter in which one party was a recent
former client, has no obligation to disclose that the defendant is a
former client of the judge’s law firm or to take any further action.

A part-time lawyer judge who presides over many criminal matters states
he/she has developed a system to prompt defendants to disclose at the outset
whether they currently are or previously were clients of the judge’s law firm. The
judge recently accepted a guilty plea from a criminal defendant who, the judge
subsequently learned, had been a client of the judge’s law firm1 (on an unrelated
matter) within the past two years.2 The judge asks what action, if any, he/she must
take under these facts.

A judge must always avoid even the appearance of impropriety (see 22 NYCRR
100.2) and must always act in a manner that promotes public confidence in the
judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must
disqualify him/herself in any proceeding where the judge’s impartiality might
reasonably be questioned (see 22 NYCRR 100.3[E][1]).

The Committee previously has advised that a judge should disqualify
him/herself, subject to remittal, where a party appearing in the judge’s court had
been a client of the judge’s law firm and the representation ended fewer than two
years before the appearance date (see Opinion 97-85 [Vol XVI]). In the Committee’s
view, this procedure is required because the judge’s impartiality might reasonably be
questioned (see 22 NYCRR 100.3[E][1]) and the judge’s timely disqualification
prevents any possible appearance of impropriety (see Opinion 89-13 [Vol. III]).

Although the inquiring judge, despite reasonable efforts to avoid doing so,
presided in a case involving a former client of his/her law firm, the Committee
concludes the inquiring judge has no obligation to disclose after the fact that the
defendant is a former client of the judge’s law firm or to take any other action.

The inquiring judge has implemented a reasonable procedure designed to avoid
conflicts involving a current or former client of the judge’s law firm. Naturally, no
procedure is foolproof. The system the judge has adopted, although reasonable,
relies on others to inform the judge of the pertinent information where, as here, the
judge was not personally involved in the representation. Had the judge personally
represented the defendant, either the judge or the defendant might have
remembered and remarked on it. Here, by contrast, other lawyers in the judge’s
firm, working in a different office location, handled the defendant’s case.

The Rules Governing Judicial Conduct are rules of reason; they do not
ordinarily require judges to sua sponte re-open proceedings that have already been
adjudicated. Under the circumstances presented, where the judge was entirely
unaware of the prior representation, and the defendant pleaded guilty to a lesser
charge with the prosecutor’s consent, it appears the parties suffered no actual or
apparent prejudice due to the defendant’s prior relationship with the judge’s law
firm. Accordingly, the judge has no ethical obligation to disclose that the defendant
is a former client of the judge’s law firm or to take any further action.

__________________________

1 The judge states that he/she was not personally involved in the representation,
which was handled exclusively by lawyers in a different office of the firm.

2 The judge notes that his/her system was in operation at the time; in another
matter that evening, the system provided the judge with the necessary information
that enabled the judge to disqualify him/herself from a case involving a different
former client of the judge’s law firm.